The National Security Archive sued the CIA to declassify the full “Official History of the Bay of Pigs Operation.” However, a U.S. District Court judge sided with the Agency’s efforts to keep the last volume of the report secret in perpetuity. In her ruling, Judge Gladys Kessler accepted the CIA’s legal arguments that, because Volume V was a “draft” and never officially approved for inclusion in the Agency’s official history, it was exempt from declassification under the “deliberative process privilege” of the Freedom of Information Act (FOIA) despite having been written over 30 years ago.

Among the significant and unresolved legal questions raised by this case are the circumstances under which draft histories are subject to withholding under FOIA exemption 5, and how the passage of time affects an agency’s rationale for withholding historical information.

Government lawyers have taken the unusual step of asking the U.S. Court of Appeals for the District of Columbia Circuit for “summary affirmance,” a process that allows it to decide the case without a hearing on the merits

In asking the Federal Appeals court for a full hearing, the NCH letter notes the precedential impact of this case could have devastating consequences on future access to records and materials for research, especially in the areas of national security, foreign relations, military history and presidential history. In addition, the district court’s decision could have a chilling effect on access to historical materials at other federal agencies, which could rely on the district court’s overly broad interpretation of exemption 5 to deny similar FOIA requests in the future.